James A. Michael is a lawyer practising First Nations law with Pink Larkin in Halifax. He is a member of the Sipekne’katik First Nation and became the first Mi’kmaw lawyer in Nova Scotia when he was called to the bar in 1993.
On Sept. 17, 2020, the Sipekne’katik First Nation, a Mi’kmaw band in Nova Scotia, launched its “moderate livelihood fishery” in Saulnierville. Mi’kmaw drummers drummed, an elder blessed the fleet, and the band’s chief issued seven lobster fishing licences to Mi’kmaw fishermen. In the days that followed, the fishermen were met by crowds of non-Indigenous fishermen who claimed that the harvest was illegal. Some of them removed traps that had been put in the water.
In a statement issued by federal Fisheries Minister Bernadette Jordan the day the fishery was launched, she said, “Until an agreement is reached with DFO [Department of Fisheries and Oceans Canada], there cannot be a commercial fishery outside the commercial season.” However, Ms. Jordan subsequently issued a statement saying that the federal government supports a moderate livelihood fishery.
The Nova Scotia Mi’kmaq have a legal right to fish and sell that fish to earn a moderate livelihood. This is a treaty right recognized by the Supreme Court of Canada and enshrined in Section 35 of the 1982 Constitution Act.
More than two decades ago, the Supreme Court dealt with the issue of out-of-season commercial fishing by the Mi’kmaq in R. v. Marshall, an appeal of a conviction against Donald Marshall Jr. The court released its decision on Sept. 17, 1999, exactly 21 years before the launch of the moderate livelihood fishery.
Mr. Marshall had been convicted of selling eels without a licence, fishing without a licence, and fishing during the closed season with illegal nets. He caught and sold eels to support himself and his wife.
The court found that the prohibitions on catching and retaining fish without a licence, on fishing during the closed season, and on the unlicensed sale of fish interfered with Mr. Marshall’s Mi’kmaw treaty right to fish for trading purposes. As the regulations were found to be without justification, Mr. Marshall was acquitted.
The right recognized by the court is found in the 1760-1761 treaties between the British and Mi’kmaq, interpreted along with oral agreements as recorded by the British at the time.
As explained in the Marshall decision, the Mi’kmaw right to earn a “moderate livelihood” through fishing – or hunting and gathering – includes the right for Mi’kmaw people to provide housing, food, clothing and amenities for themselves and their families. The court held that this right goes beyond “bare subsistence.”
Any regulation of the fishery by the federal government must accommodate this treaty right. The minister’s statement that the Mi’kmaq cannot fish commercially outside the commercial season until the band reaches an agreement with DFO fails to acknowledge the constitutional nature of this right.
The Mi’kmaq do not have to wait for DFO to reach an agreement with them to exercise their established treaty right. Rather, the minister and DFO must justify any limitations on treaty rights before they can impose them. This was the very issue at hand in the Marshall decision. If Ms. Jordan’s rationale was legally correct, Mr. Marshall would not have been acquitted.
This is not to say that there can never be restrictions on the exercise of treaty rights. The Supreme Court addressed this in Marshall II, a follow-up decision to Marshall. The court held that limitations on treaty rights can be imposed for a pressing and substantial public purpose, after appropriate consultation with First Nations, and if these limitations go no further than required.
Conservation is a compelling public objective. Nevertheless, DFO must consult with First Nations before imposing limitations on treaty rights to meet that objective, and must establish that its regulations infringe treaty rights as little as required. These consultations must be robust, ongoing and deep.
Sipekne’katik shares the goal of conservation. The band has developed a comprehensive management plan for its self-regulated fishery, including safeguards to ensure sustainability. These include restrictions on the number of traps that can be set, closed seasons, and harvesting rules that prohibit catching lobsters under a set size, lobsters with eggs attached and moulting (soft-shelled) lobsters.
Oct. 1 is Treaty Day in Nova Scotia. It recognizes the treaties signed between the British and Mi’kmaq, and marks the beginning of Mi’kmaq History Month. In its decision in Marshall, the Supreme Court of Canada acquitted Mr. Marshall, and affirmed his treaty right to earn a moderate livelihood through fishing, “because nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi’kmaq people to secure their peace and friendship.”
Today, Mi’kmaw fishermen are seeking to support themselves and their families by enforcing this same treaty right. Affirming this right advances the goal of reconciliation.
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